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January 16, 1985


The opinion of the court was delivered by: Rovner, District Judge.


Plaintiff, Charlene Evans*fn1 has sued defendants, the City of Evanston and the Director of Personnel of the City of Evanston, in a two-count Amended Complaint alleging (1) violation of Title VII of the Civil Rights Act, as amended, ("Title VII") 42 U.S.C. § 2000e, et seq. (Count One); and (2) deprivation of plaintiff's liberty in violation of the due process clause of the fourteenth amendment to the United States Constitution (Count Two). Defendants now move to dismiss under Fed.R.Civ.P. 12(b)(6). For the reasons stated in this Memorandum Opinion and Order, defendants' motion is denied.


In 1981, Charlotte Evans applied for the job of firefighter with the City of Evanston. At that time, she took a physical agility test, consisting of five events which are intended to simulate the normal duties of a firefighter: (1) aerial ladder climb, (2) ladder climb, (3) ladder carry and set-up, (4) hose connect, and (5) obstacle course. The test was scored by the total time in which an applicant completed the five events. Evans completed the physical agility test within twenty minutes and received a passing score. She then passed a written examination and was placed on a final list of eligible candidates, but her name was not reached.

Evans reapplied for the position of firefighter with the City in 1983, when the next firefighter examination was given. The 1983 physical agility test consisted of the same events used in the 1981 examination. Prior to taking the physical agility test, Evans attended an orientation session sponsored by the City of Evanston. At this session, Evans was informed that any applicant who successfully completed all events would receive a passing score and be permitted to take the written examination. Also prior to the test, Evans received a two-page written "Firefighter Applicant Information Summary" which described the physical agility test and stated: "Whether you pass or fail the [physical agility] examination will be determined by the total time to complete all of the exercises, including rest time."

Evans completed the 1983 physical agility test in a total time of fourteen minutes and forty seconds, improving by more than five minutes upon her 1981 time. Even so, Evans was informed that she had failed the 1983 physical agility test. The cut-off passing time was determined upon the application of standard deviations to the 1983 scores. The 1983 physical agility test was taken by 793 males, of whom 738 (or 93%) passed, and 39 females, of whom 5 (12.38%) passed.

On January 16, 1983, Evans filed a formal grievance with the City of Evanston, which was denied in a written finding dated March 19, 1984. Evans filed a timely charge of employment discrimination with the EEOC and a "right to sue" letter was issued on September 14, 1984.

The Title VII Claim

Count Two of the Amended Complaint alleges that plaintiff and other female applicants who took the 1983 physical agility test were denied equal employment opportunities in violation of Title VII because the test was not job related and it had a disparate impact upon female applicants. Defendants move to dismiss Count Two on the grounds that plaintiff has failed to properly allege intentional and purposeful discrimination and thus, they argue, has failed to state a cause of action under Title VII.

Defendants have misinterpreted the requirements of Title VII. Although Evans does not specify which section of Title VII she relies upon, the Amended Complaint states a cause of action under Section 703(a)(2) of Title VII, which provides in pertinent part:

It shall be an unlawful employment practice for an employer —

  (2) to limit, segregate, or classify his employees or
  applicants for employment in any way which would deprive or
  tend to deprive any individual of employment opportunities or
  otherwise adversely affect his status as an employee, because
  of such individual's race, color, religion, sex, or national

42 U.S.C. § 2000e-2(a)(2). Under the Supreme Court's construction of this provision, relief is provided based upon disparate impact alone. E.g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Dothhard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982).

Griggs and its progeny have established a three-prong analysis for disparate impact claims. To establish a prima facie case of disparate impact, a plaintiff need only show that a facially neutral policy had a disproportionate impact on a protected group. If the plaintiff succeeds, then the employer must demonstrate that the policy is job related. Even in such a case, however, the plaintiff may prevail by showing that the policy is a mere pretext for discrimination. Connecticut v. Teal, 457 U.S. at 447, 102 S.Ct. at 2531 (and cases cited therein). Proof of discriminatory motive is simply not required under a "disparate-impact," as opposed to ...

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